REGISTRATION RIGHTS AGREEMENT
Exhibit 10.6
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of ___, 2010, is made and
entered into by and among Xxxxx Acquisition Company II, Inc., a Delaware corporation (the
“Company”), HH-HACII, L.P., a Delaware limited partnership (the “Sponsor”), Xxxxxx X. Xxxxx (the
“Founder”), the undersigned parties listed under Holder on the signature page hereto and any person
or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this
Agreement (each such party, the Founder and the Sponsor, a “Holder” and collectively the
“Holders”).
RECITALS
WHEREAS, the Company and the Sponsor have entered into that certain Securities Purchase
Agreement (the “Founder Shares Purchase Agreement”), dated as of June 15, 2010, pursuant to which
the Sponsor purchased an aggregate of 3,285,714 shares (the “Founder Shares”) of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”); and
WHEREAS, the Company has entered into a separate Contribution Agreement, each dated as of
October 8, 2010, with the Sponsor and certain Holders pursuant
to which the Sponsor assigned and surrendered to the Company for
cancellation 813,214 Founder Shares and
each of Xxxxxxx X. Xxxxxxxxxx and Xxxxxxx X. Xxxxx assigned and
surrendered to the Company for cancellation 4,107 Founder Shares;
WHEREAS, the Company and the Sponsor have entered into that certain Warrant Subscription
Agreement (the “Sponsor Warrants Subscription Agreement”), dated as of June 23, 2010, pursuant to
which the Sponsor agreed to purchase warrants entitling the Sponsor to purchase 6,666,667 shares of
the Common Stock (the “Sponsor Warrants’’) in a private placement transaction occurring
simultaneously with the closing of the Company’s initial public offering; and
WHEREAS, the Company and the Holders desire to enter into this Agreement, pursuant to which
the Company shall grant the Holders certain registration rights with respect to certain securities
of the Company, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained
herein, and certain other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.1 Definitions: The terms defined in this Article I shall, for all purposes of this
Agreement, have the respective meanings set forth below:
“Adverse Disclosure” shall mean any public disclosure of material non-public information,
which disclosure, in the good faith judgment of the Chief Executive Officer or principal financial
officer of the Company, after consultation with counsel to the Company, (i) would be required to be
made in any Registration Statement or Prospectus in order for the applicable Registration Statement
or Prospectus not to contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein (in the
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case of any prospectus and any preliminary prospectus, in the light of the circumstances under
which they were made) not misleading, (ii) would not be required to be made at such time if the
Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose
for not making such information public.
“Agreement” shall have the meaning given in the Preamble.
“Board” shall mean the Board of Directors of the Company.
“Business Combination” shall mean any merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or other similar business combination with one or more businesses,
involving the Company.
“Commission” shall mean the Securities and Exchange Commission.
“Common Stock” shall have the meaning given in the Recitals hereto.
“Company” shall have the meaning given in the Preamble.
“Demand Registration” shall have the meaning given in subsection 2.1.1.
“Demanding Holder” shall have the meaning given in subsection 2.1.1.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time
to time.
“Form S-1” shall have the meaning given in subsection 2.1.1.
“Form S-3” shall have the meaning given in subsection 2.2.4.
‘‘Founder” shall have the meaning given in the Recitals hereto.
‘‘Founder Shares” shall have the meaning given in the Recitals hereto.
“Founder Shares Purchase Agreement” shall have the meaning given in the Recitals hereto.
“Founder Lock-up Period” shall mean, with respect to the Founder Shares, the period ending on
the earlier to occur of (A) one year after the completion of the Company’s initial Business
Combination or earlier if, subsequent to the Company’s initial Business Combination, the last sales
price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock
dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any
30-trading day period commencing at least 150 days after the Company’s initial Business Combination
or (B) the consummation by the Company of any subsequent liquidation, merger, stock exchange or
other similar transaction, which results in all of the Company’s stockholders having the right to
exchange their shares of the Common Stock for cash, securities or other property.
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“Holders” shall have the meaning given in the Preamble.
“Maximum Number of Securities” shall have the meaning given in subsection 2.1.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a
material fact required to be stated in a Registration Statement or Prospectus or necessary to make
the statements in a Registration Statement or Prospectus not misleading.
“Piggyback Registration” shall have the meaning given in Section 2.2.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented
by any and all prospectus supplements and as amended by any and all post-effective amendments and
including all material incorporated by reference in such prospectus.
“Prospectus Date” shall mean the date of the final prospectus filed with the Commission and
relating to the Company’s initial public offering.
“Registrable Security” shall mean (a) the Founder Shares, (b) the Sponsor Warrants (including
any shares of the Common Stock issued or issuable upon the exercise of any such Sponsor Warrants)
and (c) any outstanding share of the Common Stock or any other equity security (including the
shares of the Common Stock issued or issuable upon the exercise of
any other equity security held
by a Holder as of the date of this Agreement (d) any equity securities (including the shares of the Common Stock issued
or issuable upon the exercise of any such equity security) of the Company issuable
upon conversion of any working capital loans in an amount up to $500,000 made to the Company by
a Holder, and (e) any other equity security of the Company
issued or issuable with respect to any such share of the Common Stock by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization, merger, consolidation
or reorganization; provided, however, that, as to any particular Registrable
Security, such securities shall cease to be Registrable Securities when: (a) a Registration
Statement with respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been otherwise
transferred, new certificates for such securities not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent public distribution of such securities
shall not require registration under the Securities Act; (c) such securities shall have ceased to
be outstanding; or (d) such securities have been sold to, or through, a broker, dealer or
underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration effected by preparing and filing a registration
statement or similar document in compliance with the requirements of the Securities Act, and the
applicable rules and regulations promulgated thereunder, and such registration statement becoming
effective.
“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including,
without limitation, the following:
(A) all registration and filing fees (including fees with respect to filings required to be
made with the Financial Industry Regulatory Authority) and any securities exchange on which the
Common Stock is then listed;
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(B) fees and expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications
of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for the Company;
(E) reasonable fees and disbursements of all independent registered public accountants of the
Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest
of the Demanding Holders initiating a Demand Registration to be registered for offer and sale in
the applicable Registration.
“Registration Statement” shall mean any registration statement that covers the Registrable
Securities pursuant to the provisions of this Agreement, including the Prospectus included in such
registration statement, amendments (including post-effective amendments) and supplements to such
registration statement, and all exhibits to and all material incorporated by reference in such
registration statement.
“Requesting Holder” shall have the meaning given in subsection 2.1.1.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
‘‘Sponsor” shall have the meaning given in the Recitals hereto.
‘‘Sponsor Warrants” shall have the meaning given in the Recitals hereto.
“Sponsor Lock-up Period” shall mean, with respect to the Sponsor Warrants and any of the
Common Stock issued or issuable upon the exercise or conversion of such Sponsor Warrants, the
period ending 30 days after the completion of the Company’s initial Business Combination.
‘‘Sponsor Warrants Subscription Agreement” shall have the meaning given in the Recitals
hereto.
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as
principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which
securities of the Company are sold to an Underwriter in a firm commitment underwriting for
distribution to the public.
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ARTICLE II
REGISTRATIONS
REGISTRATIONS
2.1 Demand Registration.
2.1.1 Request for Registration. Subject to the provisions of subsection
2.1.4 and Section 2.4 hereof, at any time and from time to time on or after the
Prospectus Date, the Holders of at least twenty-five per cent (25%) of the then outstanding number
of Registrable Securities (the “Demanding Holders”) may make a written demand for Registration of
at least fifteen percent (15%) of the then outstanding number of Registrable Securities, which
written demand shall describe the amount and type of securities to be included in such Registration
and the intended method(s) of distribution thereof (such written demand a “Demand Registration”).
The Company shall, within ten (10) days of the Company’s receipt of the Demand Registration,
notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of
Registrable Securities who thereafter wishes to include all or a portion of such Holder’s
Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that
includes all or a portion of such Holder’s Registrable Securities in such Registration, a
“Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the
receipt by the Holder of the notice from the Company. Upon receipt by the Company of any such
written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be
entitled to have their Registrable Securities included in a Registration pursuant to a Demand
Registration and the Company shall effect, as soon thereafter as practicable, but not more than
forty five (45) days immediately after the Company’s receipt of the Demand Registration, the
Registration of all Registrable Securities requested by the Demanding Holders and Requesting
Holders pursuant such the Demand Registration. Under no circumstances shall the Company be
obligated to effect more than an aggregate of three (3) Registrations pursuant to a Demand
Registration under this subsection 2.1.1 with respect to any or all Registrable Securities;
provided, however, that a Registration shall not be counted for such purposes
unless a Form S-1 or any similar long-form registration statement that may be available at such
time (“Form S-1”) has become effective and all of the Registrable Securities requested by the
Requesting Holders to be registered on behalf of the Requesting Holders in such Form S-1
Registration have been sold, in accordance with Section 3. 1 of this Agreement.
2.1.2 Effective Registration. Notwithstanding the provisions of subsection
2.1.1 above or any other part of this Agreement, a Registration pursuant to a Demand
Registration shall not count as a Registration unless and until (i) the Registration Statement
filed with the Commission with respect to a Registration pursuant to a Demand Registration has been
declared effective by the Commission and (ii) the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, further, that if, after such
Registration Statement has been declared effective, an offering of Registrable Securities in a
Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or
injunction of the Commission, federal or state court or any other governmental agency the
Registration Statement with respect to such Registration shall be deemed not to have been declared
effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest of the Demanding Holders initiating such Demand
Registration thereafter affirmatively elect to continue with such Registration and accordingly
notify the Company in writing, but in no event later than five (5) days, of such election;
provided, further, that the Company shall not be obligated or required to file
another Registration Statement until the
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Registration Statement that has been previously filed with respect to a Registration pursuant to a
Demand Registration becomes effective or is subsequently terminated.
2.1.3 Underwritten Offering. Subject to the provisions of subsection 2.1.4
and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders so advise the
Company as part of their Demand Registration that the offering of the Registrable Securities
pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the
right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities
in such Registration shall be conditioned upon such Holder’s participation in such Underwritten
Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to
the extent provided herein. All such Holders proposing to distribute their Registrable Securities
through an Underwritten Offering under this subsection 2.1.3 shall enter into an
underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten
Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.1.4 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters
in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises the
Company, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar
amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders
(if any) desire to sell, taken together with all other Common Stock or other equity securities that
the Company desires to sell and the Common Stock, if any, as to which a Registration has been
requested pursuant to separate written contractual piggy-back registration rights held by any other
stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity
securities that can be sold in the Underwritten Offering without adversely affecting the proposed
offering price, the timing, the distribution method, or the probability of success of such offering
(such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum
Number of Securities”), then the Company shall include in such Underwritten Offering, as follows:
(i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any)
(pro rata based on the number of Registrable Securities that each Demanding Holder and Requesting
Holder (if any) has requested be included in such Underwritten Registration and the aggregate
number of Registrable Securities that the Demanding Holders and Requesting Holders have requested
be included in such Underwritten Registration (such proportion is referred to herein as “Pro
Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clause (i),
the Registrable Securities of Holders exercising their rights to register their Registrable
Securities pursuant to subsection 2.2.1 hereof, without exceeding the Maximum Number of
Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been
reached under the foregoing clauses (i) and (ii), the Common Stock or other equity securities that
the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;
and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the
foregoing clauses (i), (ii) and (iii), the Common Stock or other equity securities of other persons
or entities that the Company is obligated to register in a Registration pursuant to separate
written contractual arrangements with such persons and that can be sold without exceeding the
Maximum Number of Securities.
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2.1.5 Demand Registration Withdrawal. A majority-in-interest of the Demanding Holders
initiating a Demand Registration or a majority-in-interest of the Requesting Holders (if any),
pursuant to a Registration under subsection 2.1.1 shall have the right to withdraw from a
Registration pursuant to such Demand Registration for any or no reason whatsoever upon written
notification to the Company and the Underwriter or Underwriters (if any) of their intention to
withdraw from such Registration prior to the effectiveness of the Registration Statement filed with
the Commission with respect to the Registration of their Registrable Securities pursuant to such
Demand Registration. Notwithstanding anything to the contrary in this Agreement, the Company shall
be responsible for the Registration Expenses incurred in connection a Registration pursuant to a
Demand Registration prior to its withdrawal under this subsection 2.1.5.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If, at any time on or after the date the Company consummates
a Business Combination, the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into equity securities, for its own account or for
the account of stockholders of the Company (or by the Company and by the stockholders of the
Company including, without limitation, pursuant to Section 2.1 hereof), other than a
Registration Statement (i) filed in connection with any employee stock option or other benefit
plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing
stockholders, (iii) for an offering of debt that is convertible into equity securities of the
Company or (iv) for a dividend reinvestment plan, then the Company shall give written notice of
such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not
less than ten (10) days before the anticipated filing date of such Registration Statement, which
notice shall (A) describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable
Securities the opportunity to register the sale of such number of Registrable Securities as such
Holders may request in writing within five (5) days after receipt of such written notice (such
Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable
Securities to be included in such Piggyback Registration and shall use its best efforts to cause
the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the
Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included in
a Piggyback Registration on the same terms and conditions as any similar securities of the Company
included in such Registration and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof. All such Holders
proposing to distribute their Registrable Securities through an Underwritten Offering under this
subsection 2.2.1 shall enter into an underwriting agreement in customary form with the
Underwriter(s) selected for such Underwritten Offering by the Company.
2.2.2 Reduction of Piggyback Registration. If the managing Underwriter or
Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith,
advises the Company and the Holders of Registrable Securities participating in the Piggyback
Registration in writing that the dollar amount or number of the Common Stock that
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the Company desires to sell, taken together with (i) the Common Stock, if any, as to which
Registration has been demanded pursuant to separate written contractual arrangements with persons
or entities other than the Holders of Registrable Securities hereunder (ii) the Registrable
Securities as to which registration has been requested pursuant Section 2.2 hereof, and
(iii) the Common Stock, if any, as to which Registration has been requested pursuant to separate
written contractual piggy-back registration rights of other stockholders of the Company, exceeds
the Maximum Number of Securities, then:
(a) If the Registration is undertaken for the Company’s account, the Company shall include in
any such Registration (A) first, the Common Stock or other equity securities that the Company
desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clause
(A), the Registrable Securities of Holders exercising their rights to register their Registrable
Securities pursuant to subsection 2.2.1 hereof, Pro Rata, which can be sold without
exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of
Securities has not been reached under the foregoing clauses (A) and (B), the Common Stock, if any,
as to which Registration has been requested pursuant to written contractual piggy-back registration
rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number
of Securities;
(b) If the Registration is pursuant to a request by persons or entities other than the
Holders of Registrable Securities, then the Company shall include in any such Registration (A)
first, the Common Stock or other equity securities, if any, of such requesting persons or entities,
other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum
Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been
reached under the foregoing clause (A), the Registrable Securities of Holders exercising their
rights to register their Registrable Securities pursuant to subsection 2.2.1, pro rata based on the
number of Registrable Securities that each Holder has requested be included in such Underwritten
Registration and the aggregate number of Registrable Securities that the Holders have requested to
be included in such Underwritten Registration, which can be sold without exceeding the Maximum
Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been
reached under the foregoing clauses (A) and (B), the Common Stock or other equity securities that
the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;
and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the
foregoing clauses (A), (B) and (C), the Common Stock or other equity securities for the account of
other persons or entities that the Company is obligated to register pursuant to separate written
contractual arrangements with such persons or entities, which can be sold without exceeding the
Maximum Number of Securities.
2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall
have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon
written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its
intention to withdraw from such Piggyback Registration prior to the effectiveness of the
Registration Statement filed with the Commission with respect to such Piggyback Registration. The
Company (whether on its own good faith determination or as the result of a request for
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withdrawal by persons pursuant to separate written contractual obligations) may withdraw a
Registration Statement filed with the Commission in connection with a Piggyback Registration at any
time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the
contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred
in connection with the Piggyback Registration prior to its withdrawal under this subsection
2.2.3.
2.2.4. Unlimited Piggyback Registration Rights. For purposes of clarity, any
Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration
pursuant to a Demand Registration effected under Section 2.1 hereof.
2.3 Registrations on Form S-3. The Holders of Registrable Securities may at any time,
and from time to time, request in writing that the Company, pursuant to Rule 415 under the
Securities Act (or any successor rule promulgated thereafter by the Commission), register the
resale of any or all of their Registrable Securities on Form S-3 or any similar short-form
registration statement that may be available at such time (“Form S-3”); provided,
however, that the Company shall not be obligated to effect such request through an
Underwritten Offering. Within five (5) days of the Company’s receipt of a written request from a
Holder or Holders of Registrable Securities for a Registration on Form S-3, the Company shall
promptly give written notice of the proposed Registration on Form S-3 to all other Holders of
Registrable Securities, and each Holder of Registrable Securities who thereafter wishes to include
all or a portion of such Holder’s Registrable Securities in such Registration on Form S-3 shall so
notify the Company, in writing, within ten (10) days after the receipt by the Holder of the notice
from the Company. As soon as practicable thereafter, but not more than twelve (12) days after the
Company’s initial receipt of such written request for a Registration on Form S-3, the Company shall
register all or such portion of such Holder’s Registrable Securities as are specified in such
written request, together with all or such portion of Registrable Securities of any other Holder or
Holders joining in such request as are specified in the written notification given by such Holder
or Holders; provided, however, that the Company shall not be obligated to effect
any such Registration pursuant to Section 2.3 hereof if (i) a Form S-3 is not available for
such offering; or (ii) the Holders of Registrable Securities, together with the Holders of any
other equity securities of the Company entitled to inclusion in such Registration, propose to sell
the Registrable Securities and such other equity securities (if any) at any aggregate price to the
public of less than $10,000,000.
2.4 Restrictions on Registration Rights. If (A) during the period starting with the
date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and
ending on a date one hundred and twenty (120) days after the effective date of, a Company initiated
Registration and provided that the Company has delivered written notice to the Holders prior to
receipt of a Demand Registration pursuant to subsection 2.1.1 and it continues to actively
employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to
become effective; (B) the Holders have requested an Underwritten Registration and the Company and
the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(C) in the good faith judgment of the Board such Registration would be seriously detrimental to the
Company and the Board concludes as a result that it is essential to defer the filing of such
Registration Statement at such time, then in each case the Company shall
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furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good
faith judgment of the Board it would be seriously detrimental to the Company for such Registration
Statement to be filed in the near future and that it is therefore essential to defer the filing of
such Registration Statement. In such event, the Company shall have the right to defer such filing
for a period of not more than thirty (30) days; provided, however, that the
Company shall not defer its obligation in this manner more than once in any 12 month period.
Notwithstanding anything to the contrary contained in this Agreement, no Registration shall be
effected or permitted and no Registration Statement shall become effective, with respect to any
Registrable Securities held by each of the Founder and the Sponsor, until after the expiration of
the Founder Lock-Up Period or the Sponsor Lock-Up Period, as the case may be.
ARTICLE III
COMPANY PROCEDURES
COMPANY PROCEDURES
3.1 General Procedures. If at any time on or after the date the Company consummates a
Business Transaction the Company is required to effect the Registration of Registrable Securities,
the Company shall use its best efforts to effect such Registration to permit the sale of such
Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant
thereto the Company shall, as expeditiously as possible,:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement
with respect to such Registrable Securities and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective until all Registrable Securities
covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to
the Registration Statement, and such supplements to the Prospectus, as may be requested by the
Holders or any Underwriter of Registrable Securities or as may be required by the rules,
regulations or instructions applicable to the registration form used by the Company or by the
Securities Act or rules and regulations thereunder to keep the Registration Statement effective
until all Registrable Securities covered by such Registration Statement are sold in accordance with
the intended plan of distribution set forth in such Registration Statement or supplement to the
Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement
thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable
Securities included in such Registration, and such Holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each preliminary
Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities
included in such Registration or the legal counsel for any such Holders may request in order to
facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i)
register or qualify the Registrable Securities covered by the Registration Statement under such
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securities or “blue sky” laws of such jurisdictions in the United States as the Holders of
Registrable Securities included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such other governmental
authorities as may be necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be necessary or advisable to enable the Holders of
Registrable Securities included in such Registration Statement to consummate the disposition of
such Registrable Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify or take any action to which it would be subject to
general service of process or taxation in any such jurisdiction where it is not then otherwise so
subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or
automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such
Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending
the effectiveness of such Registration Statement or the initiation or threatening of any proceeding
for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus
or any amendment or supplement to such Registration Statement or Prospectus or any document that is
to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy
thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement
is required to be delivered under the Securities Act, of the happening of any event as a result of
which the Prospectus included in such Registration Statement, as then in effect, includes a
Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders, the Underwriters, if any, and any attorney or
accountant retained by such Holders or Underwriter to participate, at each such person’s own
expense, in the preparation of the Registration Statement, and cause the Company’s officers,
directors and employees to supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with the Registration; provided,
however, that such representatives or Underwriters enter into a confidentiality agreement,
in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of
any such information;
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3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public
accountants in the event of an Underwritten Registration, in customary form and covering such
matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may
reasonably request, and reasonably satisfactory to a majority-in-interest of the participating
Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such
Registration, obtain an opinion, dated such date, of counsel representing the Company for the
purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if
any, and the Underwriters, if any, covering such legal matters with respect to the Registration in
respect of which such opinion is being given as the Holders, placement agent, sales agent, or
Underwriter may reasonably request and as are customarily included in such opinions, and reasonably
satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under
an underwriting agreement, in usual and customary form, with the managing Underwriter of such
offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months beginning with the first day of the
Company’s first full calendar quarter after the effective date of the Registration Statement which
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross
proceeds in excess of $50,000,000, use its reasonable efforts to make available senior executives
of the Company to participate in customary “road show” presentations that may be reasonably
requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as
may reasonably be requested by the Holders, in connection with such Registration.
3.2 Registration Expenses. The Registration Expenses of all Registrations shall be
borne by the Company. It is acknowledged by the Holders that the Holders shall bear all
incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’
commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth
in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel
representing the Holders.
3.3 Requirements for Participation in Underwritten Offerings. No person may
participate in any Underwritten Offering for equity securities of the Company pursuant to a
Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s
securities on the basis provided in any underwriting arrangements approved by the Company and (ii)
completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up
agreements, underwriting agreements and other customary documents as may be reasonably required
under the terms of such underwriting arrangements.
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3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the
Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders
shall forthwith discontinue disposition of Registrable Securities until it has received copies of a
supplemented or amended Prospectus correcting the Misstatement (it being understood that the
Company hereby covenants to prepare and file such supplement or amendment as soon as practicable
after the time of such notice), or until it is advised in writing by the Company that the use of
the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a
Registration Statement in respect of any Registration at any time would require the Company to make
an Adverse Disclosure or would require the inclusion in such Registration Statement of financial
statements that are unavailable to the Company for reasons beyond the Company’s control, the
Company may, upon giving prompt written notice of such action to the Holders, delay the filing or
initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of
time, but in no event more than thirty (30) days, determined in good faith by the Company to be
necessary for such purpose. In the event the Company exercises its rights under the preceding
sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to
above, their use of the Prospectus relating to any Registration in connection with any sale or
offer to sell Registrable Securities. The Company shall immediately notify the Holders of the
expiration of any period during which it exercised its rights under this Section 3.4.
3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities,
the Company, at all times while it shall be reporting under the Exchange Act, covenants to file
timely (or obtain extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or
15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all
such filings. The Company further covenants that it shall take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable such Holder to sell
shares of the Common Stock held by such Holder without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act,
including providing any legal opinions. Upon the request of any Holder, the Company shall deliver
to such Holder a written certification of a duly authorized officer as to whether it has complied
with such requirements.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification:
4.1.1 The Company agrees to indemnify, to the extent permitted by law, each Holder of
Registrable Securities, its officers and directors and each person who controls such Holder (within
the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses
(including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the Company by such
Holder expressly for use therein. The Company shall indemnify the
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Underwriters, their officers and directors and each person who controls such Underwriters (within
the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to
the indemnification of the Holder.
4.1.2 In connection with any Registration Statement in which a Holder of Registrable
Securities is participating, such Holder shall furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and agents and each person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact
contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished in writing by such
Holder expressly for use therein; provided, however, that the obligation to
indemnify shall be several, not joint and several, among such Holders of Registrable Securities,
and the liability of each such Holder of Registrable Securities shall be in proportion to and
limited to the net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the
Underwriters, their officers, directors and each person who controls such Underwriters (within the
meaning of the Securities Act) to the same extent as provided in the foregoing with respect to
indemnification of the Company.
4.1.3 Any person entitled to indemnification herein shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification (provided that
the failure to give prompt notice shall not impair any person’s right to indemnification hereunder
to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in
such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such indemnified party
and any other of such indemnified parties with respect to such claim. No indemnifying party shall,
without the consent of the indemnified party, consent to the entry of any judgment or enter into
any settlement which cannot be settled in all respects by the payment of money (and such money is
so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement
does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or litigation.
4.1.4 The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
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party or any officer, director or controlling person of such indemnified party and shall survive
the transfer of securities. The Company and each Holder of Registrable Securities participating in
an offering also agrees to make such provisions as are reasonably requested by any indemnified
party for contribution to such party in the event the Company’s or such Holder’s indemnification is
unavailable for any reason.
4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying
party is unavailable or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party,
in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying party and the
indemnified party, as well as any other relevant equitable considerations. The relative fault of
the indemnifying party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, was made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s
and indemnified party’s relative intent, knowledge, access to information and opportunity to
correct or prevent such action; provided, however, that the liability of any
Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds
received by such Holder in such offering giving rise to such liability. The amount paid or payable
by a party as a result of the losses or other liabilities referred to above shall be deemed to
include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and
4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party
in connection with any investigation or proceeding. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro
rata allocation or by any other method of allocation, which does not take account of the equitable
considerations referred to in this subsection 4.1.5. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE II
MISCELLANEOUS
MISCELLANEOUS
5.1 Notices. Any notice or communication under this Agreement must be in writing and
given by (i) deposit in the United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, (ii) delivery in person or by
courier service providing evidence of delivery, or (iii) transmission by hand delivery, telecopy,
telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in
the manner described above shall be deemed sufficiently given, served, sent, and received, in the
case of mailed notices, on the third business day following the date on which it is mailed and, in
the case of notices delivered by courier service, hand delivery, telecopy, telegram or facsimile,
at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of
messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice
or communication under this Agreement must be addressed to the addressee at the address set forth
below such person’s signature on the signature pages to this Agreement. Any party may change its
address for notice at any time and from time to time by written notice to the other
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parties hereto, and such change of address shall become effective thirty (30) days after delivery
of such notice as provided in this Section 5.1.
5.2 Assignment; No Third Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not
be assigned or delegated by the Company in whole or in part. Prior to the expiration of the
Founder Lock-Up Period or the Sponsor Lock-Up Period, as the case may be, neither the Sponsor nor
the Founder may assign or delegate their rights, duties or obligations under this Agreement in
whole or in part.
5.2.2 Except as set forth in subsection 5.2.1 hereof, this Agreement and the rights,
duties and obligations of the Holders of Registrable Securities hereunder may be assigned or
delegated by such Holder of Registrable Securities in conjunction with and to the extent of any
transfer of Registrable Securities by any such Holder.
5.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties and its successors and the permitted assigns of the Sponsor, Founder
or Holder of Registrable Securities or of any assignee of the Sponsor, Founder or Holder of
Registrable Securities.
5.2.4 This Agreement shall not confer any rights or benefits on any persons that are not
parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.
5.2.5 No assignment by any party hereto of such party’s rights, duties and obligations
hereunder shall be binding upon or obligate the Company unless and until the Company shall have
received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii)
the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be
bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or
certificate of joinder to this Agreement). Any transfer or assignment made other than as provided
in this Section 5.2 shall be null and void.
5.3 Counterparts. This Agreement may be executed in multiple counterparts (including
facsimile or PDF counterparts), each of which shall be deemed an original, and all of which
together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE
EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE AS APPLIED TO AGREEMENTS AMONG
DELAWARE RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN DELAWARE, WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION.
5.5 Amendments and Modifications. Upon the written consent of the Company and the
Holders of at least sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities at
the time in question, compliance with any of the provisions, covenants and conditions set forth in
this Agreement may be waived, or any of such provisions, covenants or conditions may be
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amended or modified; provided, however, that notwithstanding the foregoing, any
amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a
holder of the shares of capital stock of the Company, in a manner that is materially different from
the other Holders (in such capacity) shall require the consent of the Holder so affected. No
course of dealing between any Holder or the Company and any other party hereto or any failure or
delay on the part of a Holder or the Company in exercising any rights or remedies under this
Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No
single or partial exercise of any rights or remedies under this Agreement by a party shall operate
as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by
such party.
5.6 Other Registration Rights. The Company represents and warrants that no person,
other than a Holder of Registrable Securities, has any right to require the Company to register any
securities of the Company for sale or to include such securities of the Company in any Registration
filed by the Company for the sale of securities for its own account or for the account of any other
person. Further, the Company represents and warrants that this Agreement supersedes any other
registration rights agreement or agreement with similar terms and conditions and in the event of a
conflict between any such agreement or agreements and this Agreement, the terms of this Agreement
shall prevail.
5.7 Termination. This Agreement shall terminate and the registration rights granted
hereunder shall expire on the date that is five (5) years after the Prospectus Date;
provided, that such termination and expiration shall not affect registration rights
exercised prior to such date.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date
first written above.
| COMPANY: XXXXX ACQUISITION COMPANY II, INC., a Delaware corporation |
||||
| By: | ||||
| Xxxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Fax: (000) 000-0000 |
||||
| HOLDERS: |
||||
| Xxxxxx X. Xxxxx | ||||
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Fax: (000) 000-0000 |
||||
| HH-HACII, L.P., a Delaware limited partnership |
||||
| By: | HH-HACII GP, LLC | |||
| its general partner | ||||
| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| Manager Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Fax: (000) 000-0000 |
||||
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| Xxxxxxx X. Xxxxxxxxxx | ||||
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 |
||||
| By: | ||||
| Xxxxxxx X. Xxxxx | ||||
Address: 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxx 00000 |
||||
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